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2005 DIGILAW 712 (PAT)

Mantu Kumar v. State Of Bihar

2005-08-10

V.N.SINHA

body2005
Judgment V.N.Sinha, J. 1. Heard learned counsel for the petitioner, Gorporation and the private Respondent. 2. The petitioner, who applied for allotment of transportation contract in the District of Nalanda by the Bihar State Food and Civil Supplies Corporation (hereinafter referred to as the Corporation), pursuant to tender notice dated 14.3.2005 issued under the signature of the Chairman and Managing Director of the Corporation, as contained in Annexure-1 to this application and became unsuccessful as the said contract was awarded to private respondent No. 6 in the meeting dated 3.5.2005 of the Headquarter Transport Committee of the Corporation, which is contained in Annexure-E of to the counter affidavit filed on behalf of the respondent Nos. 2 and 3, came to this Court asserting that the offer made by him in terms of Clause (2) of the tender notice that he shall be transporting the goods of the Corporation at a rate which is 14.81% less than the ceiling rate, fixed for the district has been ignored and the offer of the private respondent who offered to transport the goods at a rate, which is 30.6% higher than the ceiling rate has been accepted. 3. Learned counsel appearing in support of his application contended that normally lowest tender should be accepted unless there are some special reasons for not accepting the same. In this connection he pointed out the averments made in paragraph 23 of the writ petition, whereunder it has been categorically asserted that in Purnia and Gaya districts the Corporation has awarded transporting and handling contract to the lowest tenderer at the rate almost at par with the rate offered by the petitioner, but in the district of Nalanda transporting contract is being awarded to the private respondent No. 6 at a rate which is 30.6% higher than the ceiling rate and there is no special reason for granting such higher rate to the private respondent when the petitioner is agreeable to undertake the contract at a rate which 14.81% lesser than the ceiling rate. 4. In response to the aforesaid submission, counsel for the Corporation as also the private respondent No. 6 with reference to their separate counter affidavits and supplementary counter affidavit submitted that perusal of the decision of the Transport Committee of the Headquarter dated 3.5.2005, as contained in Annexure-E to the counter affidavit filed by respondent Nos. 4. In response to the aforesaid submission, counsel for the Corporation as also the private respondent No. 6 with reference to their separate counter affidavits and supplementary counter affidavit submitted that perusal of the decision of the Transport Committee of the Headquarter dated 3.5.2005, as contained in Annexure-E to the counter affidavit filed by respondent Nos. 2 and 3, it will appear that the offer of the petitioner was not accepted as the property certificate, which was furnished by him was in the name of his grand father and grand mother, which is contrary to the requirements contained in Clause (4) of the tender notice which specifically provides that the property certificate should be in the name of the person who has submitted the offer. They further pointed out that the offer of respondent No. 6 which was 30.6% higher than the ceiling rate was accepted as Sri Hari Narain Singh, Hon ble Member of the Bihar Legislative Assembly from Chandi Constituency in the district of Nalanda had apprised the Corporation that in the district of Nalanda it was not possible to transport the goods at a rate lesser than the ceiling rate and further for the last 5-6 years the transportation contract in the district of Nalanda was being awarded at a rate higher than the ceiling rate whiGh fact was confirmed by the District Manager of the Corporation under letter No. 312 dated 28.4.2005, Annexure B/2 to the counter affidavit and taking into account these facts the transportation/handling contract was awarded to respondent No. 6 at a rate which was higher by 30.6% than the ceiling rate. 5. In regard to the assertion of the petitioner that the transportation/handling contract at Purnia and Gaya was awarded at a rate lower than the ceiling rate, it was submitted that the said fact is correct, but with reference to Annexure-F issued on 12.7.2005 under the signature of the Chief Procurement Officer of the Corporation appended to the supplementary counter affidavit filed on behalf of respondent Nos. 2 and 3, it was submitted that in another 25 districts of the United Bihar, including Nalanda, the transportation contract has been awarded at a rate higher than the ceiling rate and in that view of the matter, it was submitted that it was not at all arbitrary to award contract at a higher rate than the ceiling rate. 6. 2 and 3, it was submitted that in another 25 districts of the United Bihar, including Nalanda, the transportation contract has been awarded at a rate higher than the ceiling rate and in that view of the matter, it was submitted that it was not at all arbitrary to award contract at a higher rate than the ceiling rate. 6. Learned counsel for the respondents relied upon a Division Bench Judgment of this Court in the Case of Arun Kumar Agrawal V/s. The State Food Civil Supply Corporation, reported in 2005 (1) PLJR 100 , whereunder the order of the learned Single Judge interfering with the award of the contract to a bidder whose bid was not the lowest was set aside by this Court at the instance of lowest bidder observing that in the matters of awarding contract it is the authorities whose discretion must be allowed to prevail as they are the best judge of the situation and for good reasons they are empowered to ignore the lowest bidder and to award the contract to a bidder whose bid is higher. 7. In. reply, counsel for the petitioner has not disputed the aforesaid proposition of law laid down in the aforesaid judgment. He, however, with regard to the facts of the said case submitted that in the previous year the transportation contract was given in the name of the wife of the lowest bidder of the said case who violated the terms of the contract and in the subsequent year when the husband of the last years awardee applied for awarding the contract and submitted the lowest bid, the same was not accepted considering the past conduct of his wife. In the present case there is no such situation so submitted the counsel for the petitioner as neither the petitioner nor any one else connected with him has ever been found to be a defaulter and it is admitted position that he has offered a rate which is 14.81% lesser than the ceiling rate and in that view of the matter if the authorities were not satisfied with the property certificate submitted in the same of the grand father/mother of the petitioner, they should have directed him to furnish another certificate in his own name and only in the event of failure of the petitioner to furnish the certificate in his own name should have considered the case of the Private Respondent No. 6 for awarding the contact at a rate which is 30.6% higher than the ceiling rate otherwise the best interest of the Corporation is protected by the petitioner, who offered a rate which was 14.81% lesser than the Ceiling rate. 8. Having heard counsel for the parties, it appears from paragraph 4 of the counter affidavit filed on behalf respondent Nos. 2 and 3 that the decision making process for settling the contract in the Corporation is in several tiers in which negotiation is also made with the offerers. 8. Having heard counsel for the parties, it appears from paragraph 4 of the counter affidavit filed on behalf respondent Nos. 2 and 3 that the decision making process for settling the contract in the Corporation is in several tiers in which negotiation is also made with the offerers. It further appears from the minutes of the Headquarter Transportation Committee dated 3.5.2005 that when the decision to settle the handling/transportation contract in favour of Private Respondent No. 6 was taken, the views of the Hon ble Member of the Bihar Legislative Assembly from Chandi Constituency in the district of Nalanda that awarding of the transportation contract in the district of Nalanda at a rate lesser than the ceiling rate is not feasible was taken into account and the said view was allowed to prevail as the same was corroborated endorsed by the District Manager of the Corporation under his letter No. 312 dated 28.4.2005 and those facts were never indicated in the tender notice, as such, according to this Court the Headquarter Transportation Committee of the Corporation under its meeting dated 3.5.2005, while considering the offer the parties, allowed itself to be persuaded by the factors which were extraneous to the tender notice and in that situation either the tender notice should have been cancelled or all the tenderers should have been called for negotiation in the light of the suggestion of the Hon ble Member of the Legislative Assembly, Sri Hari Narain Singh duly endorsed by the District Manager. 9. 9. Accordingly, in the special facts and circumstances of this case as indicated and discussed in preceding paragraphs, without quashing the award of the contract made in favour of the Private Respondent No. 6V as quashing of the contract at this stage may lead to stoppage of the movement of grains in the district of Nalanda, which may affect the public interest, I direct the Chairman and Managing Director of the Corporation to reconsider the grant of the handling contract to private respondent No. 6 in the light of the fact that in the districts of Purnia and Gaya the handling contract has been awarded at a rate which is lesser than the ceiling rate and the petitioner in the district of Nalanda is agreeable to undertake the transportation contact at a rate which 14.81 % lesser than the Ceiling rate then what are the special circumstances which had prevailed with the Headquarter Transportation Committee to award the handling contract in the district of Nalanda at a rate which is 30.6% higher than the ceiling rate. Petitioners case along with any other person, who has offered similar competitive rate, should be considered within one month from the date of receipt/production of a copy of this order. The Chairman-cum-Managing Director of the Corporation shall be obliged to pass a reasoned order within the aforesaid period in the light of the observation direction contained in this order. This application is, accordingly, disposed of No cost.